Gongliewski

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RYAN MICHAEL GONGLIEWSKI,

Plaintiff CIVIL ACTION NO. 3:24-CV-01935

v. (MEHALCHICK, J.)

SGT. WILDENSTEIN, et al.

Defendants.

MEMORANDUM

Pending before the Court are a series of motions and pleadings including a motion to

dismiss the original complaint (Doc. 32), a motion to amend the complaint (Doc. 50), a

proposed amended complaint (Doc. 36), a motion to serve defendants the proposed amended

complaint (Doc. 49), a motion to dismiss the proposed amended complaint (Doc. 39), a

motion for electronic filing to constitute service (Doc. 55), and a motion to subpoena

documents (Doc. 57). The Court will deny the pending motion to dismiss the original

complaint as moot, grant the motion to amend the complaint, and screen the amended

complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A(a). Only the Eighth

Amendment use of excessive force claim against three Defendants and a First Amendment

retaliation claim against one defendant will survive screening. The Court will deny

Defendants’ motion to dismiss the amended complaint and deny Plaintiff’s motions for

electronic filing to constitute service and to subpoena documents.

I. BACKGROUND AND PROCEDURAL HISTORY

On November 12, 2024, the Court received and docketed a complaint filed by Plaintiff

Ryan Michael Gongliewski (“Gongliewski”), an inmate currently housed in the State

Correctional Institution Mahanoy (“SCI-Mahanoy”) in Frackville, Pennsylvania. (Doc. 1).

The complaint named the following eight defendants: (1) Sgt. Wildenstein (“Wildenstein”),

Wyoming County Correctional Facility; (2) Corrections Officer Callahan (“Callahan”),

Wyoming County Correctional Facility; (3) Corrections Officer Camaja (“Camaja”); (4)

Corrections Officer Flynn, Wyoming County Correctional Facility; (5) W. Repsher

(“Repsher”), Warden Wyoming County Correctional Facility; (6) H. Schmidt, Deputy

Warden Wyoming County Correctional Facility; (7) Tom Henry (“Henry”), Wyoming

County Commissioner; and (8) Jessica Hostaling, Head Nurse LPN Wyoming County

Correctional Facility. (Doc. 1). Accompanying the complaint was Gongliewski’s motion to

proceed in forma pauperis and certified prisoner trust fund account statement. (Doc. 2; Doc. 3).

On December 9, 2025, the Court screened the complaint and dismissed all claims and

defendants except the First Amendment claims against Defendants Camaja, Wildenstein, and

Flynn and the Eighth Amendment claims against Defendants Camaja, Callahan, and Flynn.

(Doc. 9). The Court granted Gongliewski the opportunity to amend his complaint by January

10, 2025. (Doc. 9.) The Court did not receive any amended complaint by the deadline and

forwarded waiver of service forms to Defendants Camaja, Wildenstein, Callahan, and Flynn

on January 21, 2025. (Doc. 16; Doc. 17). On February 7, 2025, these four Defendants waived

service. (Doc. 21).

On March 5, 2025, Gongliewski filed a motion to amend his complaint. (Doc. 26).

However, this motion was deemed withdrawn as there was no brief in support and no

proposed amended pleading accompanied the motion as required by local rules. (Doc. 31).

On March 24, 2025, Defendants Camaja, Wildenstein, Callahan, and Flynn filed a

motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6). (Doc. 32). On April 4,

2025, Defendants requested additional time to file their brief in support of the motion to

dismiss, which was granted by the Court. (Doc. 33; Doc. 34.) On April 7, 2025, before

Defendants filed their brief in support of their motion to dismiss, Gongliewski filed a brief in

opposition of the motion to dismiss. (Doc. 35). Defendants then filed their brief in support of

their motion to dismiss on April 14, 2025. (Doc. 38). That same day, Gongliewski filed a

proposed amended complaint and several attachments. (Doc. 36). Defendants then filed a

reply brief regarding their motion to dismiss the complaint. (Doc. 40).

Defendants Camaja, Wildenstein, Callahan, and Flynn filed a motion to dismiss the

proposed amended complaint on April 25, 2025. (Doc. 39). On May 9, 2025, the Court

received and docketed both the brief in support and the brief in opposition of the motion to

dismiss. (Doc. 41; Doc. 42). Gongliewski filed a second brief in opposition to the motion to

dismiss on May 23, 2025. (Doc. 45). That same day, Defendants filed their reply brief

regarding their motion to dismiss the proposed amended complaint. (Doc. 46).

On May 29, 2025, Gongliewski filed a motion for service of the proposed amended

complaint on the remaining four Defendants named in the proposed amended complaint.

(Doc. 49).

On June 2, 2025, Gongliewski filed a motion to amend the complaint requesting that

the Court accept the proposed amended complaint filed on April 14, 2025 as an amended

complaint. (Doc. 50). On June 23, 2025, Gongliewski filed his brief in support of this motion.

(Doc. 56.) Defendants Camaja, Wildenstein, Callahan, and Flynn have not filed any

opposition to this motion.

On June 16, 2025, Gongliewski filed a motion for the Court to consider electronic

filing as serving the required notice on Defendants. (Doc. 55).

On July 3, 2025, Gongliewski filed a motion for subpoena duces tecum seeking the

production of documents and footage from the Wyoming County Correctional Facility along

with a brief in support. (Doc. 57; Doc. 58).

The Court will now summarize the proposed amended complaint and address all the

pending motions in this action.

II. THE PROPOSED AMENDED COMPLAINT

Gongliewski names the same eight Defendants in the proposed amended complaint as

he named in the original complaint. (Doc. 26,at 2-3). Gongliewski alleges that all events took

place at the Wyoming County Correctional Facility from May 16, 2024 through August 21,

2024. (Doc. 36, at 6). Several of Gongliewski’s allegations are not simply a summary of

events, but a series of legal conclusions associated with minimal facts. Therefore, the Court

presents the following summary of the allegations made in Gongliewski’s proposed amended

complaint in chronological order.

On May 20, 2024, Wildenstein allegedly took all Gongliewski’s hygiene and clothing

to cause unhygienic, cruel conditions. (Doc. 36, at 6).

On June 2, 2024, Wildenstein allegedly watched Gongliewski masturbate stating,

“nice cock,” which Gongliewski states violates the Prisoner Rape Elimination Act (“PREA”).

Gongliewski also states that Wildenstein violated his Sixth Amendment right that same day

by restricting him access to the law library. (Doc. 36, at 6).

On June 11, 2024, Wildenstein wrote Gongliewski up for a misconduct for protected

speech, which Gongliewski states violated his First Amendment right to free speech and

demonstrated retaliation. (Doc. 36, at 6).

On June 17, 2024, Gongliewski was told in a grievance that it is not a violation of the

First Amendment “to have the cell door window closed to see clock to see times to do prayer,”

which he alleges is a violation of 37 Pa.C.S. § 95.237 and the First Amendment. He further

states that by his First Amendment rights being violated, the action amounted to cruel and

unusual punishment in violation of the Eighth Amendment. (Doc. 36, at 6-7).

On June 19, 2024, Gongliewski allegedly received grievance retaliation by

Wildenstein. (Doc. 36, at 6).

On June 23, 2024, Camaja allegedly violated the PREA, 28 C.F.R. § 115, 34 U.S.C. §

30301, and DC-ADM-008 by allowing Gongliewski to walk around naked while on suicide

watch. Gongliewski alleges this amounted to sexual assault “in the form of sexual

harassment.” His grievance was denied, “which alone is a violation of plaintiff’s 1st

amendment US. Const through censorship of free speech as well as Article I § 7 Pa Const.

freedom on speech, and violating 37 PaCS § 95.223.” (Doc. 36, at 7; Doc. 36-10).

On July 26, 2024, Gongliewski allegedly completed a grievance that showed violations

of the First Amendment, Fourth Amendment, 37 Pa.C.S. § 95.223(4), and the Pennsylvania

Constitution. (Doc. 36, at 7; Doc. 36-11.)

On July 27, 2024, Gongliewski alleged completed a grievance that showed the women

at Wyoming Cunty Correctional Facility suffered violations of the Fourth Amendment, the

PREA, 34 U.S.C. § 30301, 28 C.F.R. § 115(11). “For context only as plaintiff suffered no

injury in incident just brining to honorable courts attention. As plaintiff is pro se and unable

to litigate matter.” (Doc. 36, at 7).

On July 27, 2024, Camaja allegedly filed a false misconduct “as no guard was on block

when incident occurred.” Gongliewski sates that Camaja was located in the bubble walk-way

with his back to the window and came in after the alleged incident, yet in his report he stated

that he witnessed the incident. Gongliewski further states that Wildenstein and Flynn came

in shortly after and made threats to spray his penis with O.C. spray, which he alleges is a

violation of the PREA and DC-AMD-001 and was done to taunt him because he had been

sprayed by a non-party on June 23, 2024. He alleges no misconduct hearing took place, which

he states is a violation of the Fourteenth Amendment and 37 Pa.C.S. § 240. He further states

that the “[i]ncident should also be viewed as a malicious sadistic threat in a sexually harassing

nature to be deemed a violation of plaintiff’s 8th amendment US. Const. to be free of cruel and

unusual punishment.” (Doc. 36, at 8.)

On August 6, 2024, Gongliewski was allegedly allowed out of his cell to made a phone

call to the victims resource center and he reported the alleged sexual abuse and harassment

against him and the female inmates. The man on the phone told him he was unable to report

anything and could only send resource materials, which never arrived. (Doc. 36, at 8.)

On August 7, 2024, Gongliewski allegedly requested to move to a cell with cold water

in the sink, as the housing unit he was in did not have cold water and he had to rely on other

inmates to get cold drinking water because officers refused. He states that he should have been

segregated due to watch requirements in 37 PaCS § 95.2226(2). Gongliewski further alleges

that this “shows cruel unusual conditions under 8th amendment US. Const and Article I § 13

Pa Const.” (Doc. 36, at 8.)

On August 8, 2024, Gongliewski allegedly requested a copy of his account statement,

and the answer by Warden Repsher showed the jail violating his Fourteenth Amendment

right to due process by restricting access to the court and 37 PaCS § 95.236 because the

“account statement required to declare in forma pauperis.” (Doc. 36, at 9.)

On August 10, 2024, Gongliewski allegedly filed a request “showing false suicide

watch violating 37 PaCS § 95.243(7) along with housing of mentally ill 37 PaCS § 95.226(2)

written by guard violating 1st amendment US. Const. to free speech as well as Article I § 7 Pa

Const. free speech.” Gongliewski alleges that this shows a “sadistic malicious way to create

cruel and unusual punishment” violating the Eighth Amendment of the U.S. Constitution

and Article I § 13 of the Pennsylvania Constitution. (Doc. 36, at 9.)

On August 11, 2024, Gongliewski allegedly filed a grievance to show violations of 37

PaCS §§ 95.238(1) and 95.231(1) and the inmate handbook “done malicious and sadistically

to cause psychological and emotional distress at the hands of state officials while on a false

suicide watch to violate plaintiffs 8th amendment right US. Const. to be free of cruel and

unusual punishment as well as Article I § 13 Pa Const.” (Doc. 36, at 9.)

On August 12, 2024, at 4:00 p.m., Camaja allegedly “refused ball at yard as a way to

be malicious and sadistic. Plaintiff experienced an excited utterance from all the psychological

torment and emotional distress caused by the officer and called him a ‘spic’.” Yard was then

allegedly cut short. Wildenstein and Callahan allegedly entered the yard, and Wildenstein

allegedly told Gongliewski to cuff up. Gongliewski was cuffed, and Wildenstein instructed

Camaja to perform the pat search. Gongliewski allegedly “verbally attested” to the search

alleging that Camaja and him should be separated after the verbal sexual assault set forth in

Exhibit 141. Camaja was allegedly instructed to perform the pat search anyway, and he

instructed Gongliewski to turn his head towards the wall. Gongliewski denied this request

1 Exhibit 14 is a grievance in which Gongliewski alleges that Camaja harassed him

based on his body mass and his genitalia. He also alleges that that Camaja made inappropriate

comments about his married sister. (Doc. 36-10).

and “had excited utterance to have this ‘spic get his hands off me’.” The search was allegedly

completed without incident, and Gongliewski was shackled behind his back and began the

process of being transported. While in the isolation hallway , Gongliewski allegedly informed

Wildenstein of the August 6, 2024 phone call he made above the PREA violations by

Wildenstein and other officers. Wildenstein’s face allegedly “blankened and anger overtook

him.” Gongliewski alleges that upon entering the block and passing a stairwell, Wildenstein

attempted to “check” or shove him into the stairwell, “to no avail.” Gongliewski states that

he entered cell B147 without incident and stopped inside the gate to have the shackles

removed. Wildenstein then allegedly threw Gongliewski into a corner of the metal bunk.

Callahan and Camaja then allegedly grabbed each of Gongliewski’s legs and Wildenstein

grabbed Gongliewski’s upper body “an forcibly threw plaintiff to the ground.” Callahan and

Camaja allegedly held Gongliewski’s legs as Wildenstein held his chest and drew his hand

back in a fist, stating “if you ever talk to one of my officers like that again I will beat your

f*cking head into the concrete.” Flynn then radioed “code Red at this time to which Sgt.

Wildenstein immediately had her clear.” Gongliewski states that Callahan, Camaja, and

Flynn made threatening faces and menacing comments and he responded with “do it pussy

beat my head into the concrete only time you want to get tough is when I’m cuffed.”

Gongliewski alleges he was then rolled on his back, his pants down around his buttocks, and

uncuffed. Defendants then left the cell. (Doc. 36, at 9-10).

Gongliewski alleges that this incident resulted in large lacerations/abrasions on his

chest and right elbow. He states that he “yelled for medical to no avail.” (Doc. 36, at 11.) He

seeks to charge Wildenstein, Callahan, and Camaja with violations under 18 U.S.C. §§ 242

and 351(e) and 37 Pa.C.S. § 95.241(2)(i). (Doc. 36, at 11.)

Gongliewski alleges that at 4:41 p.m., Camaja entered the block and threatened

Plaintiff “to catch him in the streets and see what happens.” Gongliewski alleges that at 4:59

p.m. his breathing “became increasingly exacerbated” and he fell to the floor. Non-party

Dennis Smith yelled “code blue” and four officers and Hostaling responded. Hostaling

allegedly examined Gongliewski with a stethoscope, a pulse monitor, and a blood pressure

cuff. Hostaling examined Gongliewski’s chest wound, but she denied his request that pictures

of the wound be taken. Gongliewski states that Hostaling then went to office to get saline

solution and gauze to clean blood from his chest and elbow. Gongliewski states that Flynn

documented the incident in a misconduct report stating that Gongliewski was faking an

illness. (Doc. 36, at 11; Doc. 36-3).

On August 13, 2024, Gongliewski alleges that at 8:30 a.m. he left cell B147 for yard

and lifted his shirt to show his wound to the camera in the center of the day room. He then

proceeded to outside yard and lifted his shirt to show the wound to Repsher, who “made a

comment along the lines of tell someone who cares and made a crying gesture to mock

plaintiff.” Gongliewski also states that 9:00 a.m. he showed non-party Nurse Kelsey his

wound and at 9:23 a.m. he showed non-party Captain Turner his bleeding toe caused by

“inadequate footwear.” He alleges that at1:46 p.m. he showed his chest wound to non-party

Captain Rodgers. Gongliewski states that at 3:20 p.m., he showed Henry the wound to his

chest, informed him about the PREA violation occurring, and informed him about the cells

having only hot water. Gongliewski alleges that Henry responded with “that sounds

expensive write me,” and Gongliewski told him that guards had refused him paper and

envelopes, and that his suicide pen had died and guards claimed they had no more pens to

give him. Henry then allegedly pointed at a stack of grievances on the bottom bunk written

by guards and said, “looks like you have plenty [of] paper.” Gongliewski alleges that Camaja

then mocked him with a crying gesture and walked away. (Doc. 36, at 11-12.)

Gongliewski alleges that the was “illegally transferred” on August 21, 2024 SCI-

Smithfield for the last 85 days of his county sentence in an attempt to cover up the incident in

violation of the Sixth, Eighth, and Fourteenth Amendments. Gongliewski states that the

transfer occurred at 6:00 am and he was shackled behind his back with a torn shoulder muscle

from the August 9, 2024 incident with flip flops that broke during transport. So, he arrived at

SCI-Smithfield barefoot with no underwear. (Doc. 36, at 13.)

The Court will grant Gongliewski’s motion to amend his complaint and deem the

proposed amended complaint (Doc. 36), summarized above, as the operative complaint in

this matter. Since this is a new pleading before the Court, it will initially screen the complaint

pursuant to 28 U.S.C. § 1915A and See 28 U.S.C. § 1915(e)(2) prior to addressing the pending

motion to dismiss.

III. STANDARD

Under 28 U.S.C. § 1915A, the Court is obligated, prior to service of process, to screen

a civil complaint in which a prisoner seeks redress from a governmental entity or officer or

employee of a governmental entity. 28 U.S.C. § 1915A(a); James v. Pa. Dep’t of Corr., 230 Fed.

App’x 195, 197 (3d Cir. 2007) (not precedential). The Court must dismiss the complaint if it

fails to state a claim upon which relief can be granted. 28 U.S.C. § 1915A(b)(1); Mitchell v.

Dodrill, 696 F. Supp. 2d 454, 471 (M.D. Pa. 2010). The Court has a similar obligation with

respect to actions brought in forma pauperis. See 28 U.S.C. § 1915(e)(2). In this case, because

Huff is a prisoner suing governmental employees and brings his suit in forma pauperis, both

provisions apply. In performing this mandatory screening function, a district court applies the

same standard applied to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Mitchell, 696 F. Supp. 2d at 471; Banks v. Cty. of Allegheny, 568 F. Supp. 2d 579,

588 (W.D. Pa. 2008).

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

which are not entitled to the assumption of truth, and finally determine whether the

complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal

claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule

12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well

as “documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements which make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions’ . . . .” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting

In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor

need the court assume that a plaintiff can prove facts that the plaintiff has not alleged.

Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526

(1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the United States, 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation

omitted). The plausibility determination is context-specific and does not impose a heightened

pleading requirement. Schuchardt, 839 F.3d at 347.

Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded

complaint must recite factual allegations sufficient to raise the plaintiff’s claimed right to relief

beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of

action. There is no requirement that the pleading be specific or probable. Schuchardt, 839 F.3d

at 347 (citing Phillips v. County of Allegheny, 515 F.3d at 224, 233-234 (3d Cir. 2008). Rule 8(a)

requires a “showing that ‘the pleader is entitled to relief, in order to give the defendant fair

notice of what the . . . claim is and the grounds upon which it rests.’” Erickson v. Pardus, 551

U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips, 515 F.3d at 233 (citing

Iqbal, 550 U.S. at 545).

With the aforementioned standards in mind, a document filed pro se is “to be liberally

construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully

pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers”

and can only be dismissed for failure to state a claim if it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Further, the Third Circuit has instructed that if

a complaint is vulnerable to dismissal for failure to state a claim, the district court must permit

a curative amendment, unless an amendment would be inequitable or futile. Grayson v.

Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

IV. SCREENING DISCUSSION

A. FAILURE TO STATE A CLAIM

Several of the allegations inn the amended complaint fall into one or more of three

categories: (1) legal conclusions; (2) Gongliewski filing a grievance; or (3) failure to allege any

actions of an individual.

First, the Court finds that Gongliewski’s legal conclusions without sufficient alleged

facts in support of these conclusions do not state a claim upon which relief may be granted.

As set forth above, a court must determine whether the complaint’s factual allegations, taken

as true, could plausibly satisfy the elements of the alleged legal claim. Burtch, 662 F.3d at 221.

Therefore, when Gongliewski does not provide alleged facts, the Court must dismiss the

claims. This is the case in the allegations from June 2, 2024, June 11, 2024, June 19, 2024,

and June 23, 2024.

Second, in several instances, Gongliewski states that he filed a grievance or a request

that establishes or demonstrates a violation of federal statute or a constitutional right. Stating

that he filed a grievance does not allege the factual contents of the grievance nor does it

sufficiently allege facts necessary to state a claim upon which relief may be granted and must

be dismissed. This is the case in the allegations from July 26, 2024, July 27, 20242, August 10,

2024, and August 11, 2024.

Third, Gongliewski will make allegations concerning an event, and not name a single

Defendant as an actor or party to that event. (Doc. 36.) To state a claim under 42 U.S.C. §

1983, a plaintiff must meet two threshold requirements. He must allege: 1) that the alleged

misconduct was committed by a person acting under color of state law; and 2) that as a result,

he was deprived of rights, privileges, or immunities secured by the Constitution or laws of the

United States. West v. Atkins, 487 U.S. 42, 48 (1988). It is also well established that “[a]

defendant in a civil rights action must have personal involvement in the alleged wrongs to be

liable, and cannot be held responsible for a constitutional violation which he or she neither

participated in nor approved.” See Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir. 2007).

Thus, events alleged without the personal involvement of a Defendant fail to state a claim

upon which relief may be granted and must be dismissed. This is the case with the allegations

from June 17, 2024, August 6, 2024, August 7, 2024, August 10, 2024, August 11, 2024, and

August 21, 2024 transfer to SCI-Smithfield.

2 Specifically, the claims surrounding the violations of the rights of the female prisoners

(Doc. 36, at 7) will be dismissed.

Additionally, the Court highlights that Schmidt is not named throughout the factual

allegations. (Doc. 36.) Therefore, all claims against him will be dismissed without prejudice

for failing to allege any personal involvement by Schmidt.

Furthermore, Gongliewski makes multiple allegations regarding the violation of

Department of Corrections (“DOC”) policy. (Doc. 36). However, as the Court stated in its

memorandum screening the original complaint, DOC policy does not have the force of law

and does not rise to the level of a regulation. Atwell v. Lavan, 557 F.Supp.2d 532, 556, n. 24

(M.D. Pa. Mar. 26, 2008) citing Mercy Catholic Medical Center v. Thompson, 380 F.3d 142, 154

(3d Cir. 2004). Therefore, this Court lacks jurisdiction to consider any such claims. These

claims were dismissed with prejudice back in December of 2024. (Doc. 9). To the extend that

the amended complaint raises new, unaddressed claims concerning the violation of DOC

policy, such claims are dismissed with prejudice.

Additionally, Gongliewski makes multiple allegations that Defendants’ actions

violated the PREA, which he sometimes refers to as 34 U.S.C. § 30301 and 28 C.F.R. § 115.

The PREA does not provide a private right of action, and Gongliewski is, therefore,

prohibited from asserting a claim pursuant to PREA. Harris v. Ferguson, 3:16-cv-1965, 2017

WL 3611752, at *5 (M.D. Pa. Aug. 22, 2017) citing Washington v. Folino, 2013 WL 998013, at

*4 (W.D. Pa. Feb. 28, 2013) (holding that violations of the Prison Rape Elimination Act do

not create a private cause of action) and Nestor v. Dir. of NE. Region Bureau of Prisons, 2012 WL

6691791, at *3 (D.N.J. Dec. 20, 2012) (granting summary judgment to defendants on the

plaintiff’s attempt to recover under PREA). Consequently, any claim Gongliewski may be

attempting to bring under the PREA in the amended complaint will be dismissed with

prejudice.

Similarly, Gongliewski seeks to bring criminal charges against Defendants by citing 18

U.S.C. §§ 242, 351. However, private citizens lack standing to initiate criminal proceedings.

United States v. Wegeler, 941 F.3d 665, 668 (3d Cir. 2019) (citing Linda R.S. v. Richard D., 410

U.S. 614, 619 (1973). Therefore, any attempts to raise criminal actions against Defendants in

this civil complaint will be dismissed with prejudice.

Gongliewski also makes several allegations that Defendants violated Title 37, Chapter

95 of Pennsylvania Code. (Doc. 36). Such regulations do not create a private cause of action,

nor are a violation of these regulations the proper subject of a civil rights action brought under

Section 1983. See Roman v. County of Chester, No. 23-1662-KSM, 2024 WL 4844792, *13 n. 5

(E.D. Pa. Nov. 20, 2024) citing Yunik v. McVey, Civil Action No. 08-1706, 2010 WL 4777623,

at *5 (W.D. Pa. Nov. 16, 2010) (“To the extent that Plaintiff seeks to sue Mr. Mangino for

violations of state laws and rules, we find that such fails to state a claim under Section 1983

because in order to state a claim under Section 1983, the Plaintiff must allege a violation of

his federal rights and not merely a violation of state law.”).

The only claims that remain are Gongliewski’s claims from May 20, 2024, July 27,

2024, August 8, 2024, August 12, 2024, and August 13, 2025. The Court will now address

each of these dates individually.

B. MAY 20, 2024

In the amended complaint, Gongliewski alleges that on May 20, 2024, Wildenstein

took his hygiene and clothing to cause unhygienic and cruel conditions. (Doc. 36, at 6). The

Court liberally construes this as an Eighth Amendment claim.

The Eighth Amendment prohibits cruel and unusual punishment. U.S. Const. Amend.

VIII. Prison conditions constitute cruel and unusual punishment if they result in a serious

deprivation of the prisoner’s basic human needs. See Tillman v. Lebanon Cnty. Corr. Facility,

221 F.3d 410, 418 (3d Cir. 2000). Only conditions that are so reprehensible as to be deemed

inhumane under contemporary standards or deprive an inmate of minimal civilized measures

of the necessities of life violate the Eighth Amendment. See Hudson v. McMillian, 503 U.S. 1,

8–9 (1992); Wilson v. Seiter, 501 U.S. 294, 298 (1991). “A claim of inhumane prison conditions

may rise to the level of an Eighth Amendment violation where the prison official ‘deprived

the prisoner of the minimal civilized measure of life’s necessities’ and ‘acted with deliberate

indifference in doing so, thereby exposing the inmate to a substantial risk of serious damage

to [his] future health.’” Palakovic , 854 F.3d at 225 (quoting Parkell v. Danberg, 833 F.3d 313,

335 (3d Cir. 2016)). Such a claim contains two requirements: an objective and subjective

component. Farmer v. Brennan, 511 U.S. 825, 834 (1994). A prisoner asserting a claim that the

conditions of confinement violate the Eighth Amendment must allege: (1) that objectively,

they were “incarcerated under conditions posing a substantial risk of serious harm;” and (2)

that the defendant prison official personally knew of the substantial risk to the inmate’s health

or safety and failed to “respond [ ] reasonably to the risk.” Farmer, 511 U.S. at 834, 844–45.

Here, the Court acknowledges that the deprivation of clothing and hygiene materials may be

viewed as a deprivation of life’s necessities, but Gongliewski has failed to allege that the

depravation exposed him to a substantial risk of serious damage to his future health. In fact,

the amended complaint makes multiple references to Gongliewski being placed on suicide

watch (Doc. 36), in which the deprivation of some items of clothing and hygienic tools would

be considered the appropriate means to protect his health. Therefore, this Eighth Amendment

claim will be dismissed without prejudice.

C. JULY 27, 2024

In the amended complaint, Gongliewski alleges that Camaja filed a false misconduct

report against him and no misconduct hearing took place in violation of the Fourteenth

Amendment. (Doc. 36, at 8). The Fourteenth Amendment provides, in pertinent part, that no

State shall “deprive any person of life, liberty, or property, without due process of law[.]” See

U.S. Const. amend. XIV. A Fourteenth Amendment due process claim requires that a liberty

interest be at stake:

Procedural due process rights are [only] triggered by deprivation of a legally

cognizable liberty interest. For a prisoner, such a deprivation occurs when the

prison “imposes atypical and significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484, 115

S.Ct. 2293, 132 L.E.2d 418 (1995). In determining whether a protected liberty

interest exists, the court must consider: (1) the duration of the disciplinary

confinement; and (2) whether the conditions of confinement were significantly

more restrictive than those imposed upon other inmates in solitary

confinement. See id. at 468, 115 S.Ct. 2293; Shoats v. Horn, 213 F.3d 140, 144

(3d Cir. 2000).

Huertas v. Sec'y of Pa. Dep't of Corr., 533 F. App'x 64, 66 (3d Cir. 2013). Here, Gongliewski has

not alleged the deprivation of any legally cognizable liberty interest. He simply alleges that a

false misconduct report was filed and there was no hearing. Without some loss of a liberty

interest resulting from the filing of the misconduct, the Fourteenth Amendment claim must

be dismissed. This dismissal will be without prejudice.

Gongliewski also alleged that Wildenstein and Flynn made threats to spray his penis

with O.C. spray, which he alleges violates the Eighth Amendment. (Doc. 36, at 8). It is well-

settled that the use of words, no matter how violent, is not actionable under 42 U.S.C. § 1983.

See Lewis v. Wetzel, 153 F.Supp.3d 678, 699 (M.D. Pa Dec. 21, 2015); see also Harris, 2017 WL

3611752, at *4-5 (granting summary judgment to defendants on § 1983 claims regarding

verbal sexual harassment because the record did not show that plaintiff suffered injury or

damage); Maclean v. Secor, 876 F. Supp. 695, 698-99 (E.D. Pa. 1995) (“It is well established

that verbal harassment or threats will not . . . without some reinforcing act accompanying

them, state a constitutional claim.”). Therefore, any claims concerning verbal threats will be

dismissed with prejudice.

D. AUGUST 8, 2024

In the amended complaint, Gongliewski alleges that his request for an account

statement was denied by Repsher which restricted his access to the courts because the account

statement was required to proceed in forma pauperis. (Doc. 36, at 9.) The Court construes this

as a First Amendment claim.

Asserting an actionable claim for denial of access to the courts requires a prisoner to

allege that (1) they “lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim”

and (2) they have no available remedy for the lost claim other than the present denial of access

action. Rivera v. Monko, 37 F.4th 909, 915 (3rd Cir. 2022) (citing Monroe v. Beard, 536 F.3d

198, 205 (3rd Cir. 2008)). Most significant is the nonfrivolous nature of the claim allegedly

lost. The lost claim must be “more than hope” in order to be deemed nonfrivolous. Christopher

v. Harbury, 536 U.S. 403, 416 (2002).

Gongliewski has not alleged that he lost the opportunity to pursue his claim based on

Repsher’s denial. Therefore, the First Amendment claim will be dismissed without prejudice.

E. AUGUST 12, 2024

The alleged events of August 12, 2024 appear to be the crux of Gongliewski’s amended

complaint. In it, Gongliewski alleges excessive use of force, retaliation, deliberate indifference

to a serious medical need, and a violation due process. (Doc. 36, at 9-11).

1. Excessive Use of Force

The Eighth Amendment’s protection against cruel and unusual punishment is the

“primary source of substantive protection in cases . . . where the deliberate use of force is

challenged as excessive and unjustified.” See Whitley v. Albers, 475 U.S. 312, 327 (1986). The

question is “whether force was applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm.” Hudson, 503 U.S. at 6–7 (citing Whitley, 475

U.S. 312).

Gongliewski alleges that Wildenstein, Callahan, and Camaja used force against him

that was not associated with maintaining or restoring discipline, as he alleges the use of force

took place once he was returned to his cell and turned around for restraints to be removed.

(Doc. 36, at 9-10). Therefore, this Eighth Amendment claim will survive screening.

To the extend that the allegations that Callahan, Camaja, and Flynn made threatening

faces and menacing comments or threats, such actions are not actionable under Section 1983

and will be dismissed with prejudice. See Maclean, 876 F. Supp. at 698-99.

2. Retaliation

Gongliewski brings a retaliation claim in relation to the August 12, 2024 events. (Doc.

36, at 9-11). Such claims are addressed under the First Amendment.

It is well-settled that prison officials may not retaliate against an inmate because he

exercises his right of access to the courts. Fantone v. Latini, 780 F.3d 184, 191 (3d Cir. 215). A

prisoner asserting a retaliation claim must allege the following elements: (1) he engaged in

constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a

person of ordinary firmness from exercising his constitutional rights; and (3) the

constitutionally protected conduct was “a substantial or motivating factor” for the adverse

action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001); see also Mitchell v. Horn, 318 F.3d

523, 530 (3d Cir. 2003). The filing of a lawsuit or a prison grievance constitutes protected

activity under the First Amendment. Fantone, 780 F.3d at 191.

Here, Gongliewski alleges in the amended complaint the use of force was preceded by

him telling Wildenstein “and other officers” that he had reported him on the abuse hotline

for alleged violations under the PREA. (Doc. 36). Therefore, Gongliewski has properly

alleged a retaliation claim against Wildenstein.

However, Gongliewski did not properly state a claim of retaliation against any other

Defendant who took part in the use of force on August 12, 2024 as he did not identify any

other Defendants as the individuals he reported on the August 6, 2024 call. (Doc. 36). This

Court has repeatedly refused to find a causal connection when the alleged perpetrator of the

retaliatory activity was not the subject of the constitutionally protected activity. See Calloway

v. Bauman, No. 2:20-cv-2337, 2022 WL 4357468, at *9 (M.D. Pa. Sep. 20, 2022) citing Victor

v. Lawler, 2010 WL 5014555, at *5 (M.D. Pa. Dec. 3, 2010), aff'd, 565 F. App’x 126 (3d Cir.

2014); also citing Evans v. Rozum, 2009 WL 5064490, at *22 (W.D. Pa. Dec. 17, 2009) (“There

is no apparent reason why [the moving defendants] would want to retaliate against Plaintiff

for filing a lawsuit against others.”); also citing Royster v. Beard, 308 F. App’x 576, 579 (3d Cir.

2009) (affirming summary judgment in favor of defendant on plaintiff’s claim that he was

retaliated against by a defendant who was not the target of his protected activity). Therefore,

the retaliation claims against Camaja, Callahan, Flynn, and Hostaling will be dismissed

without prejudice.

The Court acknowledges that Gongliewski named Camaja in grievances he filed prior

to August 12, 2024 (Doc. 36-10; Doc. 36-13; Doc. 36;14), but he does not allege that these

grievances were was “a substantial or motivating factor” for the adverse action against him.

Instead, the complaint clearly alleges that the “a substantial or motivating factor” was

information Wildenstein that he had named him in a call to the abuse hotline. (Doc. 36, at 9-

10). Therefore, Camaja being named in grievances does not result in any First Amendment

liability.

3. Deliberate Indifferent to Serious Medical Need

The amended complaint can be liberally construed as raising a denial of medical

treatment claim under the Eighth Amendment against Hostaling. (Doc. 36, at 11.)

Prison officials violate the Eighth Amendment when they act with deliberate

indifference to a prisoner’s serious medical needs. See Estelle, 429 U.S. at 104-05. To sustain a

constitutional claim under the Eighth Amendment for inadequate medical treatment, a

plaintiff must make (1) an objective showing that his medical needs were serious, and (2) a

subjective showing that the defendants were deliberately indifferent to those medical needs.

See Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017). A serious medical need is

“one that has been diagnosed by a physician as requiring treatment or is so obvious that a lay

person would easily recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr.

Inst'l Inmates v. Lanzaro, 834 F.2d 326, 346–47 (3d Cir. 1987) (citation omitted). A prison

official is deliberately indifferent when he or she “knows of and disregards an excessive risk

to inmate health or safety.” Farmer, 511 U.S. at 837.

However, “[p]rison medical authorities are given considerable latitude in the diagnosis

and treatment of medical problems of inmates and courts will ‘disavow any attempt to second

guess the propriety or adequacy of a particular course of treatment . . . which remains a

question of sound professional judgment.’” Byrd v. Shannon, No. 1:09-CV-1551, 2010 WL

5889519, at *4 (M.D. Pa. Nov. 24, 2010) (quoting Inmates of Allegheny County Jail v. Pierce, 612

F.2d 754, 762 (3d Cir. 1979)). Mere disagreement over proper treatment does not state a claim

upon which relief can be granted. White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990);

Monmouth Cty. Corr. Inst'l Inmates, 834 F.2d at 346 (“Courts, determining what constitutes

deliberate indifference, have consistently held that mere allegations of malpractice do not raise

issues of constitutional import. . . Nor does mere disagreement as to the proper medical

treatment support a claim of an eighth amendment violation.”).

Here, Gongliewski alleges that Hostaling provided medical treatment:

Nurse Hostaling used a stethoscope to examine plaintiff breathing. A pulse

monitor applied to plaintiffs index finger which was elevated. A blood pressure

cuff applied to plaintiffs arm to determine higher than average blood pressure.

Chest wound examined with a gentle touch. Plaintiff requested pictures to be

taken to satisfy DC-ADM-457 to which she said she has no camera and the

guards won’t allow it. She then left to go to her office and get saline solution

and gauze to clean blood from chest and elbow.

(Doc. 36, at 11). Nothing in the amended complaint amounts to an allegation that Hostaling

denied treatment. To the extent that Gongliewski disagreed with the treatment provided, such

disagreement does not constitute an Eighth Amendment violation. Therefore, the claim of

deliberate indifferent to Gongliewski’s serious medical need will be dismissed without

prejudice.

The Court acknowledges that Gongliewski made a plea for medical assistance in his

cell directly following the use of force, but it was after he alleged that any named Defendants

left the cell, and he does not allege any named Defendants heard his plea and failed to assist

in getting medical care. Therefore, these facts, as alleged, do not create liability under the

Eighth Amendment.

4. Due Process

In the amended complaint, Gongliewski mentions that Flynn document his fall in the

cell as a misconduct by stating that Gongliewski was feigning illness. (Doc. 36, at 11; Doc.

36-3). To the extent that Gongliewski is attempting bring a Fourteenth Amendment due

process claim for the misconduct report that Flynn filed, without some allegation that the

misconduct report resulted in the deprivation of a liberty interest, see Huertas 533 F. App'x at

66, his claim will be denied without prejudice.

F. AUGUST 13, 2024

The only parties to this action that Gongliewski alleges he interacted with on August

13, 2024 were Henry and Camaja. (Doc. 36, at 11-12). However, none of these interactions

resulted in a constitutional violation.

He alleges that both Henry and Camaja mocked him with a crying gesture. (Doc. 36,

at 11-12). However, as discussed above, harassment or verbal threats to not constitute an

Eighth Amendment claim. Maclean, 876 F. Supp. at 698-99. Therefore, nonverbal mocking

does not amount to a claim under Section 1983

Gongliewski also alleges that he showed Henry the wound to his chest and informed

him about the alleged PREA violations, and the lack of cold water in the cells. Gongliewski

alleges that Henry told Gongliewski to write him about the water and when Gongliewski told

Henry that guards had allegedly not provided him writing materials, Henry pointed to a stack

of grievances on the bottom bunk and said, “Looks like you have plenty [of] paper.” (Doc.

36, at 11-12). While Gongliewski does not allege Henry had any personal involvement in the

alleged problems he reported to Henry on August 13, 2024, it appears that Gongliewski is

attempting to establish Henry’s liability based on his role as the County Commissioner and

that he had notice of the alleged constitutional violations.

If a plaintiff seeks to hold a supervisory official liable for unconstitutional acts by their

subordinates, the plaintiff’s allegations must satisfy one of two theories of supervisory liability:

(1) “[i]ndividual defendants who are policymakers may be liable under § 1983 if it is shown

that such defendants, with deliberate indifference to the consequences, established and

maintained a policy, practice or custom which directly caused [the] constitutional harm[;]”

and (2), “a supervisor may be personally liable under § 1983 if he or she participated in

violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had

knowledge of and acquiesced in his subordinates’ violations.” See A.M. ex rel. J.M.K. v. Luzerne

Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (citation omitted); Barkes v. First Corr.

Med., Inc., 766 F.3d 307, 316 (3d Cir. 2014) (explaining requirements for supervisory liability

in section 1983 claim and describing “two general ways in which a supervisor-defendant may

be liable for unconstitutional acts undertaken by subordinates”), rev’d on other grounds sub

nom., Taylor v. Barkes, 575 U.S. 822 (2015).

To allege a plausible claim for supervisory liability under the first theory, a plaintiff

must “identify the specific supervisory practice or procedure that the supervisor failed to

employ.” See Chavarriaga v. New Jersy Dept. of Corrections, 806 F.3d 210, 227 (3d Cir. 2015)

(quoting Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir. 2001)). The plaintiff must also

show that:

[(1)] the existing custom and practice without the identified, absent custom or

procedure created an unreasonable risk of the ultimate injury, [(2)] the

supervisor was aware that this unreasonable risk existed, [(3)] the supervisor

was indifferent to the risk[,] and [(4)] the underling's violation resulted from the

supervisor's failure to employ that supervisory practice or procedure. Put

another way, the inmate must identify the supervisor's specific acts or

omissions demonstrating the supervisor's deliberate indifference to the inmate's

risk of injury and must establish a link between the supervisor, the act, and the

injury.

Chavarriaga, 806 F.3d at 227 (quoting Brown, 269 F.3d at 216).

For the second theory of supervisory liability, generalized allegations that a

supervisory defendant is “in charge of” or “responsible for” an office or facility are insufficient

to allege personal involvement in an underlying constitutional violation. See Saisi v. Murray,

822 F. App'x 47, 48 (3d Cir. 2020) (unpublished) (“Saisi asserted that some defendants were

in charge of agencies that allowed this to happen, and that liability stemmed merely from

defendants’ ‘belief’ that their conduct would be ‘tolerated.’ However, a director cannot be

held liable ‘simply because of [their] position as the head of the [agency].’” (quoting Evancho

v. Fisher, 423 F.3d 347, 354 (3d Cir. 2005))); Zigler v. Warren, No. 21-cv-19474, 2022 WL

903383, at *2 (D.N.J. Mar. 28, 2022) (“In simpler terms, a supervisor is not liable for the

unconstitutional conduct of his employees solely because he is a supervisor.”). Additionally,

“[a]lthough a court can infer that a defendant had contemporaneous knowledge of wrongful

conduct from the circumstances surrounding a case, the knowledge must be actual, not

constructive.” See Chavarriaga, 806 F.3d at 222 (citing Baker v. Monroe Twp., 50 F.3d 1186,

1194 (3d Cir. 1995).

Gongliewski’s alleged facts concerning Henry on August 13, 2024 are not sufficient to

meet the requirements of a supervisor liability claim under the first theory as there are no

allegations concerning the failed supervision on the part of Henry in his role as County

Commissioner. Likewise, Gongliewski’s allegations do not meet the requirements of the

second theory because he does not allege that Henry acquiesced to the alleged violations.

Instead, Gongliewski alleges that Henry told him to file a grievance, Gongliewski responded

that he did not have the means to file the grievance, and Henry pointed to paper in

Gongliewski’s cell indicating that he did have the necessary tools to file such a grievance.

Gongliewski makes no allegations that the violations continued after the notice he provide to

Henry.

Therefore, any Eighth Amendment claim against Henry and Camaja for their actions

on August 13, 2024 will be dismissed without prejudice.

G. GONGLIEWSKI’S MOTION FOR SERVICE

Following screening of the amended complaint, the only remaining claims are the

Eighth Amendment use of excessive force claim against Wildenstein, Callahan, and Camaja

and the First Amendment retaliation claim against Wildenstein. These three Defendants have

already waived service. (Doc. 21). Since the claims against the named Defendants who did

not receive waiver of service forms did not survive screening, Gongliewski’s motion for

service by the U.S. Marshal (Doc. 49) will be denied as moot.

H. DEFENDANTS’ MOTION TO DISMISS

As stated above, following screening of the amended complaint, the only remaining

claims are the Eighth Amendment use of excessive force claim against Wildenstein, Callahan,

and Camaja and the First Amendment retaliation claim against Wildenstein all stemming

from the alleged actions of August 12, 2024.

In their motion to dismiss, Wildenstein, Callahan, and Camaja raise the defense of

exhaustion and qualified immunity.

1. Administrative Exhaustion

The Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e et seq.,

requires prisoners to exhaust available administrative remedies before suing prison officials

for alleged constitutional violations. See 42 U.S.C. § 1997e(a); Ross v. Blake, 578 U.S. 632,

639, 642 (2016) (explaining that only “available” remedies must be exhausted). Proper

exhaustion is mandatory, even if the inmate is seeking relief—like monetary damages—that

cannot be granted by the administrative system. See Woodford v. Ngo, 548 U.S. 81, 85 (2006).

However, there are situations in which a grievance procedure may be rendered

“unavailable” to an inmate, such as when a prison official thwarts an inmate’s ability to use

it, Ross, 578 U.S. at 643–44, when intimidation by means of “serious threats of retaliation

and bodily harm” prevent an inmate from filing, Rinaldi v. United States, 904 F.3d 257, 266-

67 (3rd Cir. 2018), or when a prison has “rendered its administrative remedies unavailable .

. . when it failed to timely (by its own procedural rules) respond to [an inmate’s] grievance

and then repeatedly ignored his follow-up requests for a decision on his claim,” Robinson v.

Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016).

Gongliewski’s amended complaint includes multiple assertions that he filed

grievances and some of these grievances and their corresponding responses are attached to

the complaint. However, Gongliewski’s amended complaint does not allege that he

appealed any of these grievance determinations. Regardless, exhaustion is not a pleading

requirement, but an affirmative defense. Jones v. Beck, 549 U.S. 199, 216 (2007). While it

appears that Defendants are raising the lack of exhaustion as an affirmative defense, they

put the burden on Gongliewski to plead exhaustion: “[h]is amended Complaint is devoid of

any allegation that he attempted to internally report any Defendant for the conduct at issue

or otherwise follow the correctional facility’s grievance procedure.” (Doc. 42, at 8). Instead,

the burden is on Defendants to establish that Gongliewski did not exhaust his administrative

remedies. Therefore, Gongliewski’s amended complaint survives the exhaustion defense at

this stage in the litigation. Defendants may raise the defense in any subsequent dispersive

motions.

2. Qualified Immunity

Defendants also raise the affirmative defense of qualified immunity. (Doc. 42, at 8-

10). The Court notes that Gongliewski fails to allege whether he is bringing the claims against

Defendants in their official or individual capacity. (Doc. 36). However, the Third Circuit

requires a nonspecific complaint such as this to be liberally construed as if the claims were

brought against Defendants both their in their individual capacities and official capacities.

Gregory v. Chehi, 843 F.2d 111, 119–20 (3rd Cir. 1988) (“[R]esolving doubts in favor of

plaintiff, we will assume he is suing the individuals in their personal capacities as well.”).

Therefore, the Court will now address the qualified immunity defense.

“The doctrine of qualified immunity shields officials from civil liability so long as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Peroza-Benitez v. Smith, 994 F.3d 157, 165 (3d Cir. 2021)

(internal quotation marks omitted) (quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015)) (per

curiam). In assessing whether qualified immunity applies, the court engages in a two-part

analysis: (1) whether the plaintiff sufficiently alleged a right had been violated; and (2)

whether that right was clearly established when it was allegedly violated to the extent “that it

would have been clear to a reasonable person that his conduct was unlawful.” Williams v.

Secretary, Pennsylvania Department of Corrections, 848 F.3d 549, 557 (3d Cir. 2017).

As addressed above, Gongliewski has sufficiently alleged that his Eighth and First

Amendment rights were violated by Wildenstein, Callahan, and Camaja. Therefore, the

Court must assess the second part of the qualified immunity analysis. “A Government

official’s conduct violates clearly established law when, at the time of the challenged conduct,

the contours of a right are sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” L.R. v. Sch. Dist. of Phila., 836 F.3d 235,

248 (3d Cir. 2016) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (internal quotation

marks omitted). “The ultimate question is whether the state of the law when the offense

occurred” gave the prison officials “fair warning” that their conduct violated Gongliewski’s

Eighth Amendment right. L.R., 836 F.3d 235 at 247 (quoting Hope v. Pelzer, 536 U.S. 730, 741

(2002)). To determine whether such “fair warning” existed, the court must look for “factually

analogous” precedential cases. Clark v. Coupe, No. 21-2310, 2022 WL 17246324, at *8 (3d Cir.

Nov. 28, 2022) citing Peroza-Benitez, 994 F.3d at 165.

Here, the right of Gongliewski was to be free of the use of force that rises to the level

of cruel and unusual punishment. “The Supreme Court has made clear that officers may not

expose inmates to gratuitous force divorced from any legitimate penological purpose.” Jacobs

v. Cumberland County, 8 F.4th 187, 197 (3d Cir, 2021) citing Hope, 536 U.S. at 738. This alone

would provide officers with at least some notice that the alleged conduct against Gongliewski,

which allegedly included the continued use of force after he was subdued, was unlawful.

Therefore, Gongliewski’s amended complaint survives the qualified immunity defense at this

stage in the litigation.

The remaining argument in Defendants’ motion to dismiss concerns whether

Gongliewski stated a claim pursuant to Fed. R. Civ. P. 12(b)(6), which was addressed at

length in the screening process. Therefore, the motion to dismiss will be denied without

further analysis.

V. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. See Grayson, 293 F.3d at 108. The Third Circuit has also

acknowledged that a district court has “substantial leeway in deciding whether to grant leave

to amend.” Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000).

The Court will not grant Gongliewski further leave to amend his complaint prior to

the answer of the complaint. He was already granted this opportunity and failed to file an

amended pleading within the deadline provide by the Court. Pursuant to Fed. R. Civ. P. 15

and Local Rule 15.1, if Gongliewski wishes to further amend his pleading, he may do so by

filing a motion to amend with a brief in support and a proposed amended pleading.

VI. MOTION FOR CLERK’S ELECTRONIC FILING TO CONSTITUTE SERVICE

On June 16, 2025, the Court received and docketed Gongliewski’s motion for the

Clerk’s electronic filing to constitute service. (Doc. 55). Essentially, Gongliewski seeks to be

relieved of the requirement to make copies of his filings and forward them to Defendants.

Pursuant to Local Rule 5.7, documents served through the Court’s electronic filing

system results in a Notice of Electronic Filing which constitutes service of the filed document

upon each party in the case who is registered as a Filing User. Here, Defendants’ counsel is a

Filing User and is receiving Notice of Electronic Filing of Gongliewski’s submissions to the

Court. Therefore, Gongliewski’s motion is denied as moot.

VII. MOTION FOR SUBPOENA DUCES TECUM

On July 3, 2025, the Court received and docketed Gongliewski’s motion for

subpoena duces tecum seeking he production of documents, electronic files, and video

footage relating to the claims raised in the amended complaint. (Doc. 57). He also filed a

brief in support. (Doc. 58).

The Court has the inherent authority to review subpoena requests by an

unrepresented party proceeding in forma pauperis before issuing the subpoenas. Brown v.

Monsalud, No. 1:20-CV-00849, 2023 WL 8115984, at *1 (M.D. Pa. Jan. 12, 2023) (citing

Jackson v. Brinker, No. IP 91-471-C at 1992 WL 404537, at *4–5 (D. Ind. Dec. 21, 1992)).

The decision whether to allow an unrepresented litigant to subpoena a witness’s testimony

at trial is subject to the court’s discretion. Gay v. Petsock, 917 F.2d 768, 772–73 (3d Cir.

1990).

A request for a subpoena is properly denied where the requesting party fails to state

the relevance of the witness’s testimony to the trial. Brown v. Dep’t of Corrs., No. 1:15-CV-

918, 2021 WL 1969442, at *2–3 (M.D. Pa. May 17, 2021); Bakhtiari v. Madrigal, No. 3:18-

CV-00038, 2019 WL 13255457, at *2 (M.D. Pa. Sept. 16, 2019).

Additionally, when a plaintiff is proceeding in forma pauperis, he is still responsible for

paying his own litigation costs, see Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993), including

the costs of serving a subpoena and having a witness comply with the subpoena, see Jacobs v.

Heck, 364 F. App’x 744, 748 (3d Cir. 2010), and any compensation to witnesses required by

28 U.S.C. § 1821. Thus, before a subpoena may be issued, a plaintiff proceeding in forma

pauperis must demonstrate that he can pay the costs associated with the subpoena. Davis v.

Wetzel, No. 1:18-CV-00804, 2022 WL 22905385, at *2 (M.D. Pa. Feb. 24, 2022); Badman v.

Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991).

Here, Gongliewski is proceeding in forma pauperis (Doc. 9) and his motion and brief in

support do not provide any information concerning how he intends to cover the cost of the

subpoena. Therefore, the Court will deny the motion without prejudice to Gongliewski

renewing his motion with the required information. Additionally, Gongliewski is limited to

seeking the production of evidence relevant to the claims that have survived screening.

VIII. CONCLUSION

The Court will grant Gongliewski’s motion to amend the complaint, treat the proposed

amended complaint as the operative complaint in this mater, deny Defendants’ motion to

dismiss the original complaint as moot, dismiss all claims raised in the amended complaint

except the Eighth Amendment use of excessive force claim against Wildenstein, Callahan,

and Camaja and the First Amendment retaliation claim against Wildenstein from August 12,

2024, deny Defendants’ motion to dismiss the amended complaint, deny Gongliewski’s

motion for service, and deny Gongliewski’s motion for subpoena duces tecum.

An appropriate order follows.

Dated: January 14, 2026 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge